MEHROTRA, C. J.: This is plaintiff's appeal arising out of a suit for declaration of his right, title and Khas possession over the land mentioned in Schedule A attached to the plaintiff, for eviction of the defendants by demolition of the houses in basti land shown in Schedule B and for mesne profits and com­pensation shown in Schedule C. (2) The plaintiffs case is that he purchas­ed by a registered sale deed the land shown in schedule A along with some other lands from defendant No. 1. who was the owner and pattadar of the same, for Rs. 8.700/- on The 27th March 1951. Out of the sale considera­tion of Rs 8,700/-. Rs. 5.000/- was paid in cash and for Rs. 3.700/- the plaintiff executed a promissory note in favour of the defendant No. 1. Plaintiff's case is that his name was mutated after the sale, he remained in possession and the defen­dant No. 1 assured the plaintiff that he would soon remove his houses standing on the basti land Plaintiff then wanted to cultivate a por­tion and gave the rest of the Rupit land measuring about 2K. 11L. out of lands shown in Schedule A to some raiyats on Adhi system. But defendant No. 2 at the Instance of defendant No. 1 forcibly drove them away and both of them have all along wrongfully continu­ed in possession of the entire Rupit land. On these facts the plaintiff brought the suit for the reliefs which I have already mentioned. (3) The defence taken was that on the same day, that is. 27th March 1951 the plaintiff entered into an agreement with defendant No. 1 to the effect that if within four years defen­dant No. 1 paid hack the consideration, then the plaintiff was liable to reconvey the property to him and execute a sale deed in his favour. On the 4th January 1955 within four years of the execution of the agreement, the defendant sent a notice to the plaintiff through the coun­sel intimating to him that he is willing to take the said property and was ready to pay the sum of R.s 5.000/ as the suit was pending with regard lo the promissory note, at 11 A.M. on the 25th March 1955. (4) It is significant to note that the defen­dant in his own notice selected the last date when the agreement was going to expire, for the plaintiff to come to the Bar Association, Jorhat and execute the sale deed. (5) The trial court has dismissed the suit and has held that by the notice the defendant was willing to pa\ Rs. 5.000/- to the plaintiff. In fact he went to the Bar Association but the plaintiff was avoiding to reconvey the property. He has further held that section 53A, Transfer of Property Act is attracted in this case and thus the suit must fail. (6) In the present appeal although the notice was served on the defendant-respon­dents, but nobody appears before us on their behalf. The case of the plaintiff appellant is that even on the facts alleged by the defen­dants section 53A of the Transfer of Property Act is not attracted. (7) Section 53A, Transfer of Properly Act reads as follows. (6) In the present appeal although the notice was served on the defendant-respon­dents, but nobody appears before us on their behalf. The case of the plaintiff appellant is that even on the facts alleged by the defen­dants section 53A of the Transfer of Property Act is not attracted. (7) Section 53A, Transfer of Properly Act reads as follows. "Where any person contracts lo transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part per­formance of the contract, taken possession of the property or any part thereof, or the trans­feree, being already in possession, continues in possession to part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been register­ed, or, where there is an instrument of trans­fer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debar­red from enforcing against the transferee and persons claiming under him any right in res­pect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for considera­tion who has no notice of the contract or of the part performance thereof." Before section 63A can be attracted it is neces­sary firstly that the transferee has in part performance of the contract taken possession of the property or any part thereof or the transferee being already in possession conti­nues in possession in part performance of the contract and has done some act in furtherance of the contract, and secondly the transferee has performed or is willing to perform his part of The contract. The trial court has held that the defendants are in possession of the land on the strength of the contract to repurchase and they offered to repay the consideration money within the stipulated lime in further­ance of the contract. This is an act in fur­therance of the contract as required by the section. The trial court has held that the defendants are in possession of the land on the strength of the contract to repurchase and they offered to repay the consideration money within the stipulated lime in further­ance of the contract. This is an act in fur­therance of the contract as required by the section. (8) Before coming to the question whe­ther on the evidence this purl of the case of the defendants has been proved or not, obviously The court below has ignored the second requirement, namely that the transferee has performed or is willing to perform his part of the contract. After holding that the defendant remained in possession in part performance of the contract by offering to pay Rs. 5,000/- and has done some act in furtherance of the con­tract, he has nut considered at all whether the transferee has performed or is willing to per­form his part of the contract. Even assuming that his statement is correct that his offer to pay Ms. 5,000/ and to gel a sale deed execut­ed was an act in furtherance of The contract, nonetheless there It neither any evidence lo show that he has performed his part of the contract nor that he was willing to perform his part of the contract by paving the entire consideration. The sum of Rs. 5.000/ admittedly was paid to the defendant So far as the sum of Rs 8.700/- is concerned, in the notice it was stated that the defendant has filed a suit which is pending and we arc in­formed that since then The suit has been decreed and thus The defendant got the entire consideration of Rs 8.700/ . At no stage he either paid the sum of Rs 8,700/- or was willing to pay. Even the court below while dismissing the suit, has not said that the defendant was willing to make payment of Rs. At no stage he either paid the sum of Rs 8,700/- or was willing to pay. Even the court below while dismissing the suit, has not said that the defendant was willing to make payment of Rs. 8.700/ That shows that at no stage the defendant expressed his willingness to perform his part of the contract and thus one of The necessary ele­ments of section 53A has not been complied with (9) Regarding The finding of the court below that the defendants are in possession of the land on the strength of the contract of repurchase, (here is no evidence to show that The contract only stales as follows: "That I have purchased total 35 bighas 2 kathas 18 lechas of land covered by The patta as described in the schedule from the above named this day at Rs 8.700 and I have obtain­ed possession thereof. If the above named returns the said purchased price to me within 4 (four) years then I shall again sell (the same) to him by executing and registering The necessary legally valid sale-deed. Within the stipulated time I shall not be entitled to sell this land to anybody in any way or transfer it in any other way." There is nothing in the contract which shows that the defendant could have been put in possession under the contract itself and thus there is no evidence further to show that the defendants were continuing in possession in part performance of the contract. The con­tract for reconveyance could take effect after expiry of four years and it cannot, therefore, be said that on the date when the notice was given by the defendant to the plaintiff, he was in possession in part performance of the con­tract or that from the date he gave notice, his possession will be deemed to be in part perfor­mance of the contract for resale. According to the finding of the court below the defendant never gave possession to the plaintiff although the plaintiff got his name mutated. If that is so, then his possession on the date of the suit cannot be said to be referable to the contract for resale but it must be deemed to be that of a trespasser, who at no stage, in spite of the sale deed in favour of the plaintiff, was prepared to deliver possession to the purchaser. If that is so, then his possession on the date of the suit cannot be said to be referable to the contract for resale but it must be deemed to be that of a trespasser, who at no stage, in spite of the sale deed in favour of the plaintiff, was prepared to deliver possession to the purchaser. He continued in possession without any right. In our opinion the court below is not right in holding that the possession of the defendant whs in pursuance of the contract for resale. (10) It may even be accepted that the defendant remained in possession as a tres­passer on the hope that he might have been able to get back the property. But this does not mean that possession of the defendant was referable to the contract for resale. The con­tract for resale and the failure of the plaintiff on the date of the sale to pay the entire consideration, may have been emboldened the defendant to retain possession in spite of the transfer of the property to the plaintiff. But that by itself does not establish that the defen­dant at any stage came in possession or conti­nued in possession in part performance of the contract or reconveyance. Both the require­ments of section 53A, Transfer of Property Act have not been complied with in the present case. In this view of the matter the court be­low' was not right in dismissing the suit. In. the result, therefore, we allow this appeal, set aside the decree of the court below and decree the plaintiff's suit with cost. But we make no order as to cost of this appeal as the appeal is not opposed. Appeal allowed.